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No. 01-7349
COUNSEL
Todd Andrew Herbert, Appellant Pro Se. Joseph William Hooge
Mott, Assistant United States Attorney, Roanoke, Virginia, for Appellee.
OPINION
PER CURIAM:
This case is on remand from the United States Supreme Court for
"further consideration in light of Clay v. United States, 538 U.S. __[,
123 S. Ct. 1072] (2003)." Todd Andrew Herbert seeks to appeal the
district courts order dismissing his motion under 28 U.S.C. 2255
(2000). In dismissing Herberts claim under United States v. Rhynes,
196 F.3d 207, 238-40 (4th Cir. 1999), vacated in part on other
grounds, 218 F.3d 310 (4th Cir. 2000), raised in his motion to amend
the 2255 motion, the district court relied on this courts ruling in
United States v. Torres, 211 F.3d 836, 837 (4th Cir.) (revd, Clay v.
United States, 123 S. Ct. 1072 (2003)), by finding the claim untimely
filed. Because Torres was overruled by Clay, it is now clear that Herberts conviction was not final until after the ninety-day period of
time for petitioning for a writ of certiorari had expired. See Clay, 123
S. Ct. at 1079. Herberts motion to amend his 2255 motion was filed
within one year of his conviction becoming final. Accordingly, it was
timely filed, and the district court erred to the extent that it dismissed
Herberts Rhynes claim as untimely. As to the remaining claims disposed by the district, we find no error. However, because Herbert
failed to make the appropriate showing, we deny a certificate of
appealability and dismiss the appeal.
An appeal may not be taken to this court from the final order in a
habeas corpus proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. 2253(c)(1) (2000). A certificate
of appealability will not issue for claims addressed by a district court
on the merits absent "a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2) (2000). A certificate of appealability will not issue as to claims dismissed by a district court solely
on procedural grounds unless the movant can demonstrate both "(1)
that jurists of reason would find it debatable whether the petition [or
motion] states a valid claim of the denial of a constitutional right and
(2) that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling." Rose v. Lee, 252 F.3d 676,
684 (4th Cir. 2001).
As to those claims dismissed by the district court on the merits, we
find Herbert fails to make "a substantial showing of the denial of a